California Gives the Finger to AB 1252


On June 28, 2014, California Governor Jerry Brown signed Assembly Bill No. 2130 into law. This Bill served to repeal and add Section 113961 to the Health and Safety Code. For those of you unfamiliar with Health and Safety Code 113961, also known as AB 1252, I’m referring to that pesky law that went into effect January 1, 2014 which required food employees to wear gloves whenever touching ready-to-eat foods. That’s right folks. The infamous “rubber glove” law has been repealed. 

This law had the food and beverage industries up in arms over the requirement that latex gloves be worn whenever handling ready-to-eat food. Generally speaking, this required that any person working in food service, from bartenders to sushi chefs, were required to wear gloves when handling food that did not need to be cooked. I’m talking about everything from rice in your California Roll to mint in your mojito. And foodservice folks were not happy about it. As soon as the law went into effect, the California legislature announced it would be extending a six month grace period before handing out citations for violations of the law. During that time, various petitions were launched to repeal AB 1252, including a petition to exempt bartenders from the law.  

One of the biggest complaints regarding AB 1252, was that there was really no hard evidence to support that wearing gloves helped prevent foodborne illness in restaurant/bar patrons. In fact, wearing gloves may actually contribute to foodborne illness, since gloves are not always changed frequently enough, and the moist environment is a perfect breeding ground for bacteria to flourish. Moreover, business owners were concerned about the potential costs and environmental impact of the new single-use rubber glove requirement. In one article, San Diego owner of Polite Provisions, Eric Castro, called the law “an environmental nightmare.”

In response to the public outcry, California Assembly Members Pan and Gatto introduced Assembly Bill 2130. It was a race against the clock to get the bill passed, since the six month grace period only extended until June 30, 2014. After that, California businesses would be stuck with the glove law. Luckily, AB 2130 passed in the Assembly on May 8, 2014, and approved by the Governor on June 28, 2014. Due to the urgency of the nature of the bill, the statute went into effect immediately upon signing.

Now, rather than requiring food industry workers to wear gloves when handling ready-to-eat foods, or assembling foods, the newly enacted Health and Safety Code Section 113961 requires the worker “minimize bare hand and arm contact with nonprepackaged food that is in a ready to eat form.” While the law does require that food workers, “use utensils, including scoops, forks, tongs, paper wrappers, gloves, or other implements to assemble ready-to-eat food or to place ready-to-eat food on tableware or in other containers,” they are allowed to assemble or place ready-to-eat food on tableware or in other containers without utensils or implements, so long as they wash their hands in accordance with Health and Safety Code Section 113953.3.

Although, there is some ambiguity in the new Section as written relating to what constitutes “minimized” contact, this law is much more preferential than the previous law that required all workers wear gloves when handling ready-to-eat foods. If the California Legislature is really worried about foodborne illness in bars and restaurants, they should be focusing their efforts on proper food handling training and certifications, rather than slapping rubber gloves on everyone. At least our bartenders and sushi chefs can rest easier knowing they won’t be dusting our drinks and rolls with latex glove powder.

Missouri AG isn’t Playing ‘Chicken’ with California

I don’t know about you, but I LOVE eggs. I eat eggs almost every day for breakfast. Eggs are delicious and incredibly healthy. Don’t believe me, go read CaveGirl Eats’ book, “EAT THE YOLKS.” So, naturally, when I see news about eggs, I’m immediately interested.

For those of you who do not follow the goings on in the agricultural industry, you probably completely missed that little lawsuit filed by Missouri’s Attorney General Chris Koster in the beginning of February. In case you had your head up a chicken’s bum during that time and are wondering what got Koster’s feathers ruffled to begin with, let me illuminate.

Very simply, Koster filed a Federal suit against California over chicken coops. I know, you must think I’m joking, but I assure you, I am not. In 2008, California voters approved Proposition 2; a ballot initiative that required all California farmers to provide larger enclosures to egg laying hens. California farmers became concerned that the new regulations would increase their costs, and put them at a competitive disadvantage with other egg farms across the country, as those farmers were not beholden to California’s more strict caging requirements. in 2010, as a result of the growing concern, the state legislature passed a measure requiring out of state producers to comply with California’s rules.

Are you following this so far? California gets pressure from various animal rights groups (most notably the Humane Society) to treat egg laying hens (and other farm animals) more ethically. California enacts law to require bigger cages. Farmers worry, because bigger cages means larger operating costs for farmers. That cost necessarily gets passed on to consumers when they buy their eggs. Those more expensive eggs get sold at the store next to cheap eggs from a different state where the California regulations do not exist. You (consumer) look at a dozen eggs for $6 or a dozen for $4, and more often than not, you will buy the cheaper eggs. So, to keep the playing field “fair,” (and of COURSE to promote public health and safety) California says anyone selling eggs in our state has to comply with our regulations. The caging requirements go into affect in 2015 for California farmers, with all out of state farmers to follow suit by the end of that year.

Naturally, this really boiled Missouri’s egg. While Missouri doesn’t even rank in the top 10 egg producing states in the country, it does send approximately 540 million of its 1.7 billion eggs to the California market. However, this situation does beg the question as to why Missouri, is stepping up to the plate to bring this lawsuit against California?

AG Koster stated that it is his job to fight against out of state “legislation that imposes new requirements or limits on  Missouri businesses.” He goes on to state that requiring egg farmers to comply with California larger coop requirements is a violation of the Constitution’s Commerce Clause, which prohibits any state from enacting legislation that regulates  conduct wholly outside its borders, protects its own citizens from out-of-state  competition, or places undue burdens on interstate commerce. Not to mention, it will cause Missouri farmers to suffer increased costs just to do business with California.

Is this really about the constitutionality of California’s regulation, or is there perhaps something else going on? At the end of the day, egg farmers are running businesses. And nobody understands the agricultural business better than BigAgra (think companies like Monsanto).

Previously included in the recently passed Farm Bill (you know, the one that slashed SNAP benefits by billions of dollars), was an amendment backed by BigAgra interests known as the King Amendment (named after and authored by noted racist Iowa Republican, Steve King). The King Amendment purported to  “prohibit states from enacting laws that place conditions on the means of production for agricultural goods that are sold within its own borders, but are produced in other states.” Uh, I don’t know about you, but that looks quite obviously aimed at a particular California law. Thankfully, the King Amendment was dropped from the Farm Bill, but it begs the question: Why didn’t Iowa bring the suit against California? After all, Iowa is the largest producer of eggs in the country, and appears to have a much larger vested interest in seeing the California legislation defeated.

This takes me back to BigAgra and Big Agribusiness. Clearly, BigAgra and Big Agribusiness have a HUGE interest in keeping costs low and regulation at a minimum. This leads me to believe that the lawsuit filed by Missouri may be an attempt to get into the good graces of these giant conglomerates. Hello! Monsanto’s headquarters are in Missouri. Obviously, the companies that make up BigAgra do not want to change their business practices, if it ultimately means a loss in profits. Forget that the chickens cannot even stand up and turn around! Profits, people! It will be interesting to see how this lawsuit turns out. I imagine it could eventually be a measuring stick for future lawsuits to come regarding state attempts at exercising food safety and agricultural regulations across the country.


Small Brew knocks out Big Brew with KO Trademark Punch

Big Sky Brewing Drops Suit Photo Credit: KURT WILSON/ Missoulian

To view the whole article, click HERE.

As of January 23, 2014, Missoula, Montana based brewery Big Sky Brewing agreed to drop the lawsuit it filed against  Anheuser Busch for trademark infringement in exchange for Busch removing a YouTube commercial from its channel which featured the saying, “hold my beer and watch this.”

Big Sky Brewing had been using the phrase since 2004 and had the phrase registered as a federal trademark in 2009. While the advertisements were never featured on television, Big Sky nonetheless requested that Busch cease its use of the phrase in its YouTube commercials. Based on comments by Busch’s communication director, there was no financial component to the agreement. It appears Busch simply agreed to pull the YouTube videos in exchange for Big Sky’s voluntarily dismissal.

After reading this article, I was struck by Busch’s acquiescence to simply remove the videos from YouTube in exchange for dismissal of Big Sky’s complaint. I mean, according to that very same article I mentioned above, Big Sky had sold approximately 50,000 barrels of its product in the year 2013. This is a paltry number compared to Busch who sells hundreds of millions of barrels of its product per year. For those who are  unfamiliar with “barrels,” a barrel of beer is typically around 31 gallons. This obviously depends on where you are in the world (the US measures barrels differently than the UK).

What really astounded me was Big Sky’s ability to get a company like Busch to take down a highly-visible ad, when Busch is clearly the majority owner in the market share. Normally, we’re used to seeing large corporations like Busch “muscle” their way out of a lawsuit such as this. And by “muscle,” I mean Busch using its vast wealth to pile paperwork, discovery, and motions onto Big Sky, thereby forcing Big Sky into a settlement. But in this instance, Busch appears to have simply removed the YouTube ads. In reality, the amount Busch spent on the YouTube ads was likely less than the amount it would cost to litigate the matter, so they simply took them down. However, I do believe another factor in Busch removing the YouTube ads was the fact that Big Sky just so happened to have federally registered their slogan, “hold my beer and watch this” as a trademark. In registering their trademark, it gave them a stronger foothold upon which they could bring their suit against Busch for trademark infringement. By having their slogan registered as a trademark, Big Sky was able to bring a lawsuit against Busch for federal trademark infringement and more specifically false designation of origin by way of the Lanham Act.

For some clients I have worked with, it can be difficult for them to understand how federal trademark registration can positively impact a business. Registration does not inherently prevent infringement, so why go to all the trouble and cost to register it with the United States Patent and Trademark Office? I often hear clients tell me that because they are not “a big business,” trademark registration will not confer any real benefits to them, and that they will wait until they are “bigger” to protect their intellectual property interests. I believe this Big Sky/Busch case exemplifies how a federally registered trademark can make a big difference, even when going up against a “big player” such as Busch.

Had Big Sky used the “hold my beer and watch this” slogan without registering it with the United States Patent and Trademark Office, I do not believe Busch would have been so willing to take down their YouTube ads. Would Big Sky still have a basis to claim they had superior rights to the phrase than Busch? Sure. But would the claim be as strong? Probably not. While Big Sky could claim common law rights in the mark, it would not have been as strong as their claim for infringement of a registered trademark. Trademark registration provides certain “presumptions” to registrants. For one, registration gives the owner of the trademark the presumption that they were the first to make use of the mark. While that presumption is rebuttable, without registration, you would not be afforded that presumption and would be forced to prove you were the first to make use of the mark in commerce, as well as the owner of the mark. For marks that are not inherently distinctive (read: not unique, descriptive), this can be very difficult to prove.

So, by Big Sky obtaining federal trademark registration for its slogan, they had a stronger basis by which they could sue Busch, and also had a stronger claim they were the owners and first users of that slogan. Thus, it made it easier for Busch to make the decision to “give up” the fight and take the ads down, even though Big Sky was a much smaller company and they probably could have made Big Sky’s business suffer during the pendency of the lawsuit. So, I’ll leave all you business owners out there with this final thought: Do you still think you’re “too small” for trademark protection to be helpful?

Chew on This: Coalition Pushing for Healthier, Low-Cost Food Options

I, for one, am very excited about this prospect. 

SACRAMENTO — A coalition of organic farmers, nutritionists and environmental justice activists is jumping into the rough-and-tumble politics at California’s Capitol.

The California Food Policy Council, a network of 19 groups around the state, wants to persuade legislators to pass laws that would support sustainable agriculture and safeguard soil and water quality for large and small farmers. The idea, organizers say, is to make healthful, affordable food options available for low-income urban dwellers, schoolchildren and others.

“It’s a confluence of many different elements of what you could call the food movement,” said Michael R. Dimock, the president of an Oakland group, Roots of Change, that provides staffing and funding for the new organization.

Combating climate change is high on the agenda, he said. “If the climate goes crazy, it’s going to impact food production.”

The council, in a report, already is touting some successes, including the passage last year of bills that expanded access to fresh produce for food-stamp recipients, gave property owners a tax break for urban farms and gardens and cleared the way for driver’s licenses for immigrant farmworkers.

The coalition is also reaching out to the powerful agricultural industry, he said. “It’s not our goal to make Big Ag the enemy.”

via New coalition pushing for more healthful, low-cost food options –

No Touch for You!

Effective January 1, 2014, Section 113961 of the California Retail Food Code prohibits restaurant workers from touching ready-to-eat foods with their bare hands. Basically, this requires all restaurant workers to use gloves when handling food intended to be consumed by patrons. The old law simply required contact with bare arms and hands be “minimized,” and that handlers use utensils to assemble and plate food; unless however, the hands were washed in accordance with another section in the code, in which case, touch away.

The new law, takes all guesswork out of the question, “to touch, or not to touch?” You are no longer allowed to touch. Despite seeming very strict, this “No Touch” law doesn’t mean there are absolutely no exceptions. For example, if the food product is made of raw animal food, and is intended to be cooked immediately after handling, on all sides, to the minimum temperatures specified in subdivisions (a) and (b) of Section
114004 or in Section 114008, then touching is permitted. Also, if the food does not contain raw animal food, but all parts are to be heated to a temperature of above 165 degree Fahrenheit, touching is permissible.

Among the more convoluted exceptions are found in subdivision (f) of Section 113961. This section permits employees not serving a highly susceptible population to contact exposed,
ready-to-eat food with their bare hands, but only if all of the following occur:

  • (1) The permit-holder obtains prior approval from the regulatory authority. — OK, got it! Sounds easy enough.

  • (2) Written procedures are maintained in the food facility and made available to the regulatory authority upon request, that include all of the following: — Now you’re going to get tricky, aren’t you?

  • (A) For each bare hand contact procedure, a listing of the specific ready-to-eat foods that are touched by bare hands. — OK, so in my procedures, I need to list all foods to be touched…

  • (B) Diagrams and other information showing that hand washing facilities that are installed, located, and maintained in accordance with Sections 113953, 113953.1, and 113953.2, are in an easily accessible location and in close proximity to the work station where the bare hand contact procedure is conducted. — Now you’re telling me I need to look at these other sections to figure out if my hand washing facilities are installed, located, and maintained in accordance with those other sections, THEN I need to put a diagram up with that info close to where the food is handled. This is starting to get tricky. I won’t keep going, but you get the idea.

Here’s the rest of subdivision (f) for your digestion. Feel free to skip this if you’re not particularly interested in the technical mumbo-jumbo.

  • (3) A written employee health policy that details the manner in which the food facility complies with Sections 113949, 113949.1, 113949.2, 113949.3, 113949.4, 113949.5, 113950, and 113950.5, including all of the following:

    • (A) Documentation that food employees and conditional employees acknowledge that they are informed to report information about their health and activities as they relate to gastrointestinal symptoms and diseases that are transmittable through food as specified in Section 113949.1.
    • (B) Documentation that food employees and conditional employees acknowledge their responsibilities as specified in Section 113949.4.
    • (C) Documentation that the person in charge acknowledges the responsibilities specified in Sections 113949.5, 113950, and 113950.5.
  • (4) Documentation that food employees acknowledge that they have received training in all of the following:(D) Proper fingernail maintenance, as specified in Section 113968.

    • (A) The risks of contacting the specific ready-to-eat foods with bare hands.
    • (B) Proper handwashing techniques and requirements, pursuant to subdivision (a) of Section 113953.3.
    • (C) Where to wash their hands, as specified in Section 113953.1.
    • (E) Prohibition of jewelry, as specified in subdivision (a) of Section 113973.
  • (F) Good hygienic practices, as specified in Sections 113974 and 113977.

  • (5) Documentation that hands are washed before food preparation and as necessary to prevent cross-contamination by food employees, as specified in Sections 113952, 113953.1, and 113953.3 during all hours of operation when the specific ready-to-eat foods are prepared.

  • (6) Documentation that food employees contacting ready-to-eat foods with bare hands use two or more of the following control measures to provide additional safeguards to hazards associated with bare hand contact:

  • (A) Double handwashing.

  • (B) Nail brushes.

  • (C) A hand antiseptic after handwashing, as specified in Section 113953.4.

  • (D) Incentive programs such as paid sick leave that assist or encourage food employees not to report to work if they are ill.

  • (E) Other control measures approved by the regulatory authority.

  • (7) Documentation that corrective action is taken when the requirements specified in paragraphs (1) to (6), inclusive, are not followed.

So, it’s pretty clear that there are ways around this new law, but it’s not as easy as – say – posting a sign. In any event, I hope all you sushi chefs out there got that, because you’ll probably want to apply for some kind of exemption. So far, nothing indicates that any exemptions are “automatic,” and the steps for obtaining an exemption need to be carefully followed, to stay in compliance with subdivision (f).

There is some good news, though! Guidelines on enforcement were not issued until mid December, so The California Department of Public Health and the California Conference of Directors of Environmental Health agreed to a soft-rollout period of 6 months, and agreed to note violations as a warning on inspection reports, educating restaurant operators about the specifics of the new rules during the soft rollout period.

I suppose investing in rubber gloves would be a prudent first step toward compliance?